Pawan Kumar vs The State of Punjab

Sukhdev Singh Kang, J.—This is a revision petition against the judgment dated 3rd April, 1982, of the learned Sessions Judge, Bhatinda, whereby he had dismissed the appeal filed by Pawan Kumar, petitioner, against his conviction and sentence awarded by the Learned Magistrate.

Briefly stated the facts leading to this revision are that on 15th July, 1971, Assistant Sub Inspector Gurpal Singh was present in Raman Mandi along with Head constable Natha Singh and other police officials for patrol duty. There he received a secret information against the accused-petitioner. On the basis of this secret information Assistant Sub-Inspector sent a ruqa to the police station, whereupon a case against the accused-petitioner was registered. The police made a search for him, but he was not found available.

On 19th July, 1979, Assistant Sub-Inspector Gurpal Singh along with Assistant Sub Inspector Bakhshish Singh, Assistant Sub-Inspector Amar Singh, Head-Constable Mangal Singh and other police officials was returning to the police station after conducting raid at village Sekhu. When they reached near the garden of grapes in the area of Raman Mandi, Pawan Kumar was seen coming from the side of orchard. He tried to slip away on seeing the police party but he was apprehended by Assistant Sub Inspector Gurpal Singh with the help of police officials. On interrogation, Pawan Kumar made a disclosure statement that he had kept concealed opium in dubka under the staircase of his house and offered to get the same recovered. His disclosure statement was reduced into writing. Thereafter in pursuance of this statement, the accused-petitioner led the police party to his house and got recovered 5 kilos 50 grams of opium. A sample was taken out of this recovered opium and then both the sample and the remaining opium were sealed separately and taken into possession After due investigation, the accused-petitioner was challaned, He was tried by the learned trial Magistrate and convicted u/s 9 of the Opium Act. He was sentenced to undergo rigorous imprisonment for a period of one and a half year and to pay a fine of Rs. 1000/-, in default to undergo rigorous imprisonment for six months. Aggrieved by this judgment he filed an appeal and the same was dismissed by the learned Sessions Judge.

The present revision petition had been admitted only on the point as to whether the petitioner was entitled to the benefit of the provisions regarding probation.

Mr. S.S. Chopra, the Learned Counsel for the petitioner, has argued that even when a revision petition is not dismissed at the motion stage and is admitted only on a question of sentence, the revision petitioner is entitled to argue the whole case. No case can be admitted on a particular point. Either a case is dismissed or it is admitted. When it is admitted the whole case is open and the court has to decide it on merits after hearing the parties. In support of this contention he has relied upon a decision of this Court in Darshan Singh v. The State (U.T. Chandigarh) (1974) 1 Cr.L.T. 126. This judgment in deed supports the contention of Mr. Chopra, So, I have heard him on I the merits of the case.

It has been vigorously argued by Mr. Chopra, that the charge in this case is that the petitioner was found in possession of opium on 15th of July, 1979, whereas the evidence has been led by the prosecution that the petitioner got the contraband opium recovered on 19th July, 1979. According to the Learned Counsel the petitioner had not been required to stand trial for being in possession of opium on 19th July, 1979. By this charge the petitioner has been gravely prejudiced. On firstblush, the argument looks attractive, but it does not bear a closure scrutiny. As noticed earlier, Assistant Sub-Inspector Gurpal Singh had received secret information on 15th July, 1979. A case was registered and a search was made for the petitioner but he was not available Thereafter he was found by the police party on 9th July, 1979, and he led to the recovery of 5Kgs and 50gms of opium. It is apparent that in the charge inadvertently instead of 19th July, 1979, 15th July, 1979, has been mentioned. Shri Chopra has not been able to show as to how the petitioner has been prejudiced by this typographical mistake regarding the date in the charge This mistake or error in the charge does not in any way vitiate the proceedings The legislature in its wisdom has so provided in section 464 of the Code of Criminal Procedure, which reads as under:--

Effect of omission to frame, or absence of, or in charge:-

(1) No finding, sentence or order by a court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of Appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby.

(2) If the Court of Appeal, confirmation or revision is of opinion that failure of justice has in fact been occasioned, it may--

(a) in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommended from the point immediately after the framing of the charge;

(b) in the case of an error, omission or irregularity in the charge direct a new trial to be had upon a charge framed in whatever manner it thinks fit;

Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction.

So, a mere error of a date in the charge will not render the trial and conviction of the petitioner illegal in the absence of any prejudice caused to the petitioner.

It was argued that Assistant Moharrir Head Constable Mukhtiar Singh had in his affidavit, Exhibit DB, deposed that the case property of this case had been deposited with him on 15th July, 1979. This means that the recovery in this case had already taken place on 15th July, 1979, and nothing was recovered on 19th July, 1979, as deposed to by the prosecution witnesses. This argument is patently without merit. Mukhtiar Singh was examined as a witness in the court of the learned trial Magistrate as CW 1. He has explained the position. He stated that the date 15th July, 1979, in his affidavit. Exhibit DB, had been in advertently mentioned, because this was the date of the case first registered against the petitioner. The substantive evidence is the statement of Mukhtiar Singh made in the Court. Therein, he has clearly stated that the case property was deposited on 19th July. 1982.

It was contended that the police was inimically disposed towards the petitioner. The petitioner had filed a complaint against Harchand Singh, who was the Station House Officer of this police station earlier to the posting of Gurpal Singh, Assistant Sub-Inspector The mere fact that the petitioner had filed a complaint against some police officer of this very police station will not make all the police officers of this police station inimical towards the petitioner. No enmity has been suggested much less proved with Gurpal Singh, Assistant Sub-Inspector.

Lastly, it was argued that the petitioner was aged 18 years at the time of the commission of the offence and be was not a previous convict, that he should be released on probation. The quantity of the opium recovered suggests that the petitioner is a smuggler of or dealer in opium. Suchlike people pray on the frustrations of moral weaknesses of ordinary citizens. By providing drugs to weak-willed persons they spoil their physical and financial health. Drug addiction is a menace which is eating into the very vitals of the society. This evil can be curved only with a strong hand. The modern penological reforms are not intended for such type of people. So, the petitioner is not entitled to be released on probation.

However, keeping in view the age of the petitioner I reduce the substantive sentence of imprisonment from 1-1.2 years to 1 year and the sentence of fine from Rs. 1000/- to Rs 500/-. In case of default of payment of fine, the petitioner shall undergo rigorous imprisonment for four months. With this modification in sentence of imprisonment, the revision petition stands dismissed.